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 Over the course of four amended complaints, this action has been transformed from a 1

claim, raised against seven defendants at one state prison, about an alleged improper deprivation

of a radio, to an action against sixty-five named defendants and numerous other Doe defendants

at four state prisons and the California Department of Corrections headquarters. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ALONZO REED,

Plaintiff, No. CIV S-04-0575 GEB JFM P

vs.

D. L. RUNNELS, et al.,

Defendants. ORDER TO SHOW CAUSE

 /

Plaintiff is a state prisoner proceeding pro se. This action was commenced by

plaintiff in state court and removed by defendants to this court pursuant to 28 U.S.C. § 1441. 

Since removal, plaintiff has filed an amended complaint, a second amended complaint, a third

amended complaint and, most recently, a proposed fourth amended complaint. 

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The court is required to screen complaints brought by prisoners seeking relief

against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. 28

U.S.C. § 1915A(b)(1),(2). 

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 

Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

Cir. 1989); Franklin, 745 F.2d at 1227.

A complaint, or portion thereof, should only be dismissed for failure to state a

claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set

of facts in support of the claim or claims that would entitle him to relief. Hishon v. King &

Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer

v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a

complaint under this standard, the court must accept as true the allegations of the complaint in

question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the

pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor,

Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 

Plaintiff’s fourth amended complaint is ninety-one pages long and names sixtyfive individual defendants and numerous Doe defendants. This action was commenced in this

court on March 22, 2004 when defendants filed a notice of removal removing this action from

the Lassen County Superior Court to this court. The fourth amended complaint contains

numerous allegations based on events that occurred in March 2004 and thereafter. 

“Section 1997e(a) of Title 42 of the United States Code provides:

No action shall be brought with respect to prison conditions under

[42 U.S.C. § 1983], or any other Federal law, by a prisoner

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confined in any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.

This exhaustion requirement is mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001).”

McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002); see also Porter v. Nussle, 534 U.S.

516, 524 (2002). Exhaustion must precede the filing of the complaint and that compliance with

the statute is not achieved by satisfying the exhaustion requirement during the course of an

action. McKinney, 311 F.3d at 1199. As a general rule, defendants have the burden of

establishing that plaintiff failed to satisfy the exhaustion requirement of 42 U.S.C. § 1997e(a). 

See Wyatt, 315 F.3d at 1120. Here, however, it is axiomatic that plaintiff could not have

exhausted administrative remedies for any claim based on events that occurred on or after March

22, 2004, the date on which the instant action was removed to this court. Good cause appearing,

the parties will be directed to show cause in writing why all claims arising from allegations of

events that occurred on or after March 22, 2004 should not be dismissed without prejudice for

failure to exhaust administrative remedies prior to suit.

The fourth amended complaint also includes, inter alia, challenges to a series of

allegedly retaliatory disciplinary proceedings against plaintiff that took place in 1999, (proposed

Fourth Amended Complaint, filed March 8, 2006, at 10-31), a challenge to an alleged retaliatory

transfer suffered by plaintiff in November or December 1999, (id. at 35), a series of allegations

about grievances filed by plaintiff in the year 2000 during a period of incarceration at High

Desert State Prison, (id. at 35-38), allegations that his right to due process was violated in prison

disciplinary proceedings in October 1999, (id. at 61), and allegations that plaintiff was

discriminated against in 1998, (id. at 62-64). 

California law determines the applicable statute of limitations in this § 1983

action. See Wilson v. Garcia, 471 U.S. 261 (1985). The applicable state limitations period is

one year. See Cal. Code Civ. Proc. § 340(3); see also Elliott v. City of Union City, 25 F.3d 800,

802 (9th Cir.1994). In addition, inmates imprisoned “for a term less than life” are entitled to

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 The court makes no findings at this time whether or not plaintiff is entitled to the two- 2

year statutory tolling period of California Code of Civil Procedure § 352.1 or any other form of

tolling. Issues relating to tolling of the applicable limitations period should be briefed by the

parties in their response to this order to show cause.

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statutory tolling of the limitations period for two years. Fink v. Shedler, 192 F.3d 911, 914 (9th

Cir. 1999) (citing Cal. Code Civ. P. § 352.1.) Federal law governs when plaintiff’s § 1983

claims accrued and when the limitations period begins to run. Cabrera v. City of Huntington

Park, 159 F.3d 374, 379 (9th Cir. 1998). Under federal law, “the claim generally accrues when 

the plaintiff ‘knows or has reason to know of the injury which is the basis of the action.’” Id.

(citations omitted). 

Many of plaintiff’s claims are based on allegations of events that occurred more

than three years before this action was removed to this court. Good cause appearing, the parties 2

will be ordered to show cause, if any there is, why those claims should not be dismissed as barred

by the statute of limitations.

Finally, the court notes as a general matter that plaintiff’s fourth amended

complaint does not contain a short and plain statement of claims as required by Fed. R. Civ. P. 8.

In McHenry v. Renne, 84 F.3d 1172, 1177 (9 Cir. 1996), the Ninth Circuit Court of Appeal

th

upheld the dismissal of a complaint it found to be “argumentative, prolix, replete with

redundancy, and largely irrelevant. It consists largely of immaterial background information.” 

The court observed the Federal Rules require that a complaint consist of “simple, concise, and

direct” averments. Id. As a model of concise pleading, the court quoted the standard form

negligence complaint from the Appendix to the Federal Rules of Civil Procedure:

1. Allegation of jurisdiction.

2. On June 1, 1936, in a public highway, called Boylston Street, in Boston

Massachusetts, defendant negligently drove a motor vehicle against plaintiff, who

was then crossing said highway.

3. As a result plaintiff was thrown down and had his leg broken, and was

otherwise injured, was prevented from transacting his business, suffered great

pain of body and mind, and incurred expenses for medical attention and

hospitalization in the sum of one thousand dollars.

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 In this regard, however, plaintiff should not file a proposed fifth amended complaint 3

unless and until he is directed to do by the court. Plaintiff is cautioned that sanctions, including

but not limited to, dismissal of the action may be imposed for failure to comply with court orders.

5

Wherefore plaintiff demands judgment against defendant in the sum of one

thousand dollars.

Id.

Plaintiff’s fourth amended complaint suffers from many of the same problems as

the pleading dismissed in McHenry: there is much “‘narrative rambling[]’” yet a marked lack of

“notice of what legal claims are asserted against which defendants.” Id. at 1176. As in

McHenry, “[p]rolix, confusing complaints such as the ones plaintiffs filed in this case impose

unfair burdens on litigants and judges.” Id. at 1179. Although the fourth amended complaint

will not be dismissed at this time, the court anticipates that once the issues related to exhaustion

and timeliness are resolved, plaintiff will be required to amend his pleading one last time to

delete all surplusage from the pleading on which this action will proceed.3

On March 8, 2006, plaintiff filed a document styled as motions for a temporary

restraining order, and on April 21, 2006, plaintiff filed a supplement thereto. The principal

purpose of preliminary injunctive relief is to preserve the court's power to render a meaningful

decision after a trial on the merits. See C. Wright & A. Miller, 11 Federal Practice and

Procedure, §2947 (1973). In addition to demonstrating that he will suffer irreparable harm if the

court fails to grant the preliminary injunction, plaintiff must show a "fair chance of success on

the merits" of his claim. Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 754

(9th Cir. 1982), quoting Benda v. Grand Lodge of International Association of Machinists and

Aerospace Workers, 584 F.2d 308, 315 (9th Cir. 1979). Implicit in this required showing is that

the relief awarded is only temporary and there will be a full hearing on the merits of the claims

raised in the injunction when the action is brought to trial. 

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The court has not yet determined that plaintiff has presented any cognizable

claims in his fourth amended complaint. Moreover, the claims underlying his requests for

temporary restraining order are based on alleged events that postdated the filing of this action

and, therefore, may not be cognizable in this action because plaintiff could not have satisfied the

exhaustion requirement of 42 U.S.C. § 1997e(a) with respect to any such claims before the 

action was filed in this court. For these reasons, plaintiff’s motions will be denied without

prejudice.

On August 21, 2006, plaintiff filed a document styled “Emergency Order

Directing the Prison Officials to Return All Sixteen Boxes of Plaintiff’s Legal Materials.” 

Plaintiff’s request is overbroad and far exceeds the scope of any relief that might be available to

him to avoid an unconstitutional interference with his right to access the court to litigate this

action. Cf. Lewis v. Casey, 518 U.S. 343, 351, 356 (1996) (prison inmates have a

constitutionally protected right to access the courts to bring civil rights actions to challenge their

conditions of confinement and to bring challenges to their criminal convictions, and prison

officials must not, by their acts, prevent an inmate from bringing, or cause an inmate to lose, an

actionable claim of this type.) Plaintiff’s request will be denied.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Within twenty-one days from the date of this order the parties shall file briefs

addressing whether some or all of plaintiff’s claims are barred by the statute of limitations and

whether some or all of plaintiff’s claims should be dismissed without prejudice for failure to

exhaust administrative remedies prior to suit;

2. Plaintiff’s March 8, 2006 motion for temporary restraining order is denied

without prejudice;

3. Plaintiff’s April 21, 2006 supplemental motion for temporary restraining order

is denied without prejudice; and

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4. Plaintiff’s August 21, 2006 request for an order directing return of property is

denied. 

DATED: September 12, 2006.

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reed0575.o5

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